Brandon K. v. S. K.

2017 IL App (2d) 170075

83 N.E.3d 478

IN RE BRANDON K., a Minor

(The People of the State of Illinois, Petitioner-Appellee,

v.S. K., Respondent-Appellant).

In re Nathan K., a Minor

(The People of the State of Illinois, Petitioner-Appellee,

v.S. K., Respondent-Appellant).

In re Justin K., a Minor

(The People of the State of Illinois, Petitioner-Appellee,

v.S. K., Respondent-Appellant).

Nos. 2-17-0075, 2-17-0076, 2-17-0077 cons.

Appellate Court of Illinois, Second District.

Opinion filed July 13, 2017

Ronald L. Haskell, of Law Office of Ronald L. Haskell, of St. Charles, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Lawrence M. Bauer, and Stephanie H. Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Respondent, S. K., appeals from the Kane County circuit court's order terminating his parental rights to his three minor children, Brandon K., Nathan K., and Justin K. In the underlying criminal action, a jury found respondent guilty of the first-degree murder of the minors' mother (see 720 ILCS 5/9-1(a)(1) (West 2014)), based on evidence of strangulation. Respondent's direct appeal from the conviction is pending in this court.

¶ 2 The trial court found that the State had shown by clear and convincing evidence that respondent was unfit, based on (1) depravity (see 750 ILCS 50/1(D)(i) (West 2014)); (2) failure to make reasonable progress toward the return of the minors to him during the nine-month period from June 26, 2015, to March 26, 2016 (see 750 ILCS 50/1(D)(m)(ii) (West 2014)); and (3) failure to make reasonable efforts to correct the conditions that were the basis for the removal of the minors from him during the nine-month period from June 26, 2015, to March 26, 2016 (see 750 ILCS 50/1(D)(m)(i) (West 2014)). However, the trial court also found that the State did not prove respondent unfit for failing to make reasonable efforts from September 25, 2014, to June 25, 2015 (see 750 ILCS 50/1(D)(m)(i) (West 2014)). The trial court then determined that termination of respondent's parental rights was in the minors' best interests. Respondent does not contest the best-interests determination but argues that the evidence does not support the court's finding of unfitness. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. Adjudication and Disposition

¶ 5 Brandon was born on September 1, 2004, Nathan was born on April 28, 2007, and Justin was born on December 8, 2008. On July 6, 2014, the Department of Children and Family Services (DCFS) received a hotline call stating that the minors' mother was found deceased under suspicious circumstances. At the time of their mother's death, the boys were nine, seven, and five years old, respectively.

¶ 6 At a temporary-custody hearing on July 21, 2014, respondent stipulated that, on July 11, 2014, he was charged with two counts of first-degree murder for the mother's death and was incarcerated in the Kane County jail on a $1.5 million bond. The court found that probable cause and urgent and immediate necessity existed for the removal of the minors. DCFS was granted custody, and the minors were placed with their maternal grandfather.

¶ 7 On September 24, 2014, the trial court adjudicated the minors dependent. See 705 ILCS 405/2-4(1)(a) (West 2014). On October 27, 2014, respondent was found unfit, unable, and unwilling to care for and protect the minors, and the minors were made wards of the court. The initial goal was for the minors to return home within 12 months. The minors remained in the care of their maternal grandfather.

¶ 8 B. Permanency Reviews

¶ 9 1. November 2014 through January 2015

¶ 10 On January 20, 2015, the trial court conducted a permanency review. The court heard evidence that respondent's criminal trial was scheduled for that spring. Christina Divito, a caseworker from the Youth Service Bureau (YSB), reported that respondent was cooperating with DCFS to the extent that he could while in custody. Divito scheduled an appointment that week for respondent to sign various consent forms and complete an integrated assessment, which was required before services could be offered. The minors remained with their maternal grandfather.

¶ 11 2. February 2015 through June 2015

¶ 12 At a permanency review on July 7, 2015, the court continued the matter to January 20, 2016, because of intervening events in respondent's criminal case. On March 16, 2015, respondent had been found guilty of first-degree murder, and on July 31, 2015, respondent had been sentenced to 30 years' imprisonment. On November 6, 2015, respondent filed a direct appeal from the murder conviction, which is pending.

¶ 13 3. July 2015 through March 2016

¶ 14 On January 20, 2016, Kelly Beinborn, a caseworker assigned to the minors in October 2015, reported that respondent had completed the integrated assessment in June 2015. Domestic violence and mental health services were recommended, but respondent had not attempted to follow through with those recommendations. Those services had been unavailable in the Kane County jail, but in August 2015, soon after his conviction, respondent was transferred to Stateville Correctional Center, where the services were available. In January 2016, respondent was transferred to Menard Correctional Center. Beinborn reported that she would follow up as to the availability of services there.

¶ 15 Respondent had submitted letters to the minors, but they were not delivered. The letters were deemed to be not therapeutically recommended, because respondent had made certain promises in the letters that he could not keep, due to his incarceration. The maternal grandfather was willing to provide permanency through adoption.

¶ 16 On February 5, 2016, respondent filed a motion to stay the proceedings during the pendency of his criminal appeal. On March 30, 2016, the motion was heard and denied.

¶ 17 C. Termination of Parental Rights

¶ 18 On July 16, 2016, the State filed three amended petitions for termination of respondent's parental rights and the power to consent to adoption. Each petition was directed at one of the minors and contained identical allegations. Following several hearings at which the State presented evidence regarding respondent's first-degree-murder conviction and whether he had made reasonable efforts and progress, the trial court found respondent unfit, based on (1) depravity ( 750 ILCS 50/1(D)(i) (West 2014)); (2) failure to make reasonable progress toward the return of the minors to him during the nine-month period from June 26, 2015, to March 26, 2016 ( 750 ILCS 50/1(D)(m)(ii) (West 2014)); and (3) failure to make reasonable efforts to correct the conditions that were the basis for the removal of the minors from him during the nine-month period from June 26, 2015, to March 26, 2016 ( 750 ILCS 50/1(D)(m)(i) (West 2014)).

¶ 19 The cause proceeded to a best-interests hearing. The court found that it was in the minors' best interests to terminate respondent's parental rights and entered a judgment doing so. This timely appeal followed.

¶ 20 II. ANALYSIS

¶ 21 Respondent appeals from the termination of his parental rights. Initially, we admonish respondent's counsel for using the minors' full names in briefing materials, in violation of Illinois Supreme Court Rule 660(c) (eff. Oct. 1, 2001), which provides as follows:

"In all appeals filed from proceedings under the Juvenile Court Act, the minor(s) shall be identified by first name and last initial or by initials only. The preferred method is first name and last initial. The alternative method of initials only is to be used when, due to an unusual first name or spelling, the preferred method would create a substantial risk of revealing a minor's identity. The name(s) of the involved minor(s) shall not appear on any documents filed with the Appellate Court or any subsequent court."

¶ 22 Turning to the merits of the appeal, we emphasize that a parent's right to raise his or her biological child is a fundamental liberty interest and that the involuntary termination of that right is a drastic measure. In re Haley D ., 2011 IL 110886, ¶ 90, 355 Ill.Dec. 375, 959 N.E.2d 1108. Accordingly, the Juvenile Court Act of 1987 provides a two-stage process for the involuntary termination of parental rights. 705 ILCS 405/2-29(2) (West 2014). Initially, the petitioner must prove by clear and convincing evidence that the parent is unfit. 705 ILCS 405/2-29(2), (4) (West 2014); 750 ILCS 50/1(D) (West 2014); In re Adoption of Syck , 138 Ill. 2d 255, 277, 149 Ill.Dec. 710, 562 N.E.2d 174 (1990) ; In re Antwan L ., 368 Ill. App. 3d 1119, 1123, 307 Ill.Dec. 408, 859 N.E.2d 1085 (2006). We will reverse the trial court's finding of unfitness only if it is against the manifest weight of the evidence. A determination of unfitness is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or the determination is unreasonable, arbitrary, or not based on the evidence presented. In re Addison R ., 2013 IL App (2d) 121318, ¶ 22, 370 Ill.Dec. 836, 989 N.E.2d 224.

¶ 23 If the court finds the parent unfit, the petitioner must then show that termination of parental rights would serve the child's best interests. 705 ILCS 405/2-29(2) (West 2014); Syck , 138 Ill. 2d at 277, 149 Ill.Dec. 710, 562 N.E.2d 174 ; Antwan L ., 368 Ill. App. 3d at 1123, 307 Ill.Dec. 408, 859 N.E.2d 1085. As our supreme court has noted, at the best-interests phase, "the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." In re D.T ., 212 Ill. 2d 347, 364, 289 Ill.Dec. 11, 818 N.E.2d 1214 (2004). Respondent does not challenge the trial court's best-interests determination on appeal, so our analysis is limited to the unfitness finding.

¶ 24 Section 1(D) of the Adoption Act ( 750 ILCS 50/1(D) (West 2014)) sets forth numerous grounds on which a parent may be found unfit, but...